Citation NR: 9734603
Decision Date: 10/14/97 Archive Date: 10/16/97
DOCKET NO. 96-14 031 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUES
1. Entitlement to an increased rating for otitis media,
currently evaluated as 10 percent disabling.
2. Entitlement to an increased rating for labyrinthitis with
tinnitus, currently evaluated as 30 percent disabling.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
K. Conner, Associate Counsel
INTRODUCTION
The veteran had active naval service from August 1953 to
November 1955. This matter comes to the Board of Veterans’
Appeals (Board) from a February 1994 rating decision of the
Department of Veterans Affairs (VA) Oakland Regional Office
(RO) which denied his claims of entitlement to evaluations in
excess of 10 percent for tinnitus, otitis media and vertigo.
In September 1996, he testified at a hearing in Sacramento.
Thereafter, by June 1996 decision, the Hearing Officer
assigned a 30 percent rating for chronic labyrinthitis
(formerly vertigo) with tinnitus (formerly rated separately),
and continued the 10 percent rating for chronic otitis media.
The veteran’s claims folder is now in the jurisdiction of the
Seattle RO.
CONTENTIONS OF VETERAN ON APPEAL
The veteran and his representative contend, in essence, that
his service-connected otitis media and labyrinthitis with
tinnitus are more severe than the current evaluations
reflect.
DECISIONS OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for an increased rating for
otitis media, but that the evidence supports a 100 percent
evaluation for labyrinthitis with tinnitus and/or Meniere’s
disease.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained by the
RO.
2. The veteran has recurrent episodes of suppurative otitis
media.
3. His labyrinthitis with tinnitus, also diagnosed as
Meniere’s disease, is currently manifested by symptoms of
severe disequilibrium with constant vertigo and episodes of
falling, wheelchair dependency, and tinnitus, resulting in
complete incapacitation.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 10 percent
for otitis media have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code
6200.
2. The criteria for a 100 percent evaluation for chronic
labyrinthitis with tinnitus and/or Meniere’s disease have
been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §
4.87, Diagnostic Code 6205 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has carefully considered the evidence compiled by
and on behalf of the veteran. It has been determined that
the veteran’s claims are well-grounded within the meaning of
38 U.S.C.A. § 5107(a). See Proscelle v. Derwinski, 2
Vet.App. 629 (1992). The Board is satisfied that all
relevant facts have been adequately developed to the extent
possible; no further assistance to the veteran in developing
the facts pertinent to his claim is required to comply with
the duty to assist the veteran as mandated by 38 U.S.C.A. §
5107(a).
I. Factual Background
A review of the claims folder indicates that by December 1956
rating decision, the RO granted service connection for
bilateral suppurative otitis media, bilateral defective
hearing, and otitis externa of the right ear; the RO assigned
10 percent, 10 percent, and noncompensable disability
evaluations, respectively. These evaluations have remained
in effect for more than 20 years and as such, they are
protected from reduction. 38 C.F.R. § 3.951(b) (1996).
In February 1982, the veteran filed claims for increased
ratings for his service-connected disabilities. He underwent
VA examination in January 1983. On examination, the veteran
reported a long history of ear disease which began with a
blast injury to his ears in service. He stated that he
subsequently developed chronic ear infections and was given a
medical discharge in 1955. In 1956, he had reconstruction of
the right ear and a left mastoidectomy after which he
attempted to wear hearing aids; however, he experienced
difficulties with chronic ear drainage. He underwent a
bilateral radical mastoidectomy in 1967; this improved his
hearing and ear drainage for approximately one year. In
1968, however, he again began experiencing recurrent
tinnitus, dizziness and drainage. The veteran reported that
these symptoms had persisted to the present time. He also
reported occasional imbalance episodes which were brought on
by rapid changes in altitude which he often experienced in
his job as a logging truck driver. On examination, both ear
canals revealed bilateral radical mastoidectomies; both ear
canals contained mucopurulent drainage. His hearing loss was
a moderately-severe mixed loss in both ears with a
significant conductive component.
Based on this evidence, by January 1983 rating decision, the
RO increased to 40 percent the evaluation for his bilateral
defective hearing. The 10 percent evaluation for otitis
media and the zero percent evaluation for otitis externa were
continued.
In July 1984, the veteran filed claims for increased ratings
for otitis media and service connection for tinnitus. By
September 1984 rating decision, the RO granted service
connection for tinnitus, assigning a 10 percent evaluation
pursuant to the provisions of Diagnostic Code 6260. The 10
percent evaluation for otitis media was confirmed and
continued.
The veteran filed a claim of service connection for vertigo
in June 1985. He underwent VA examination in December 1985.
On examination, he reported frequent episodes of vertigo,
induced by a variety of stimuli including movements and noise
exposure. He stated that during these episodes of vertigo,
he experienced loss of balance, confusion, spinning and
nausea. The veteran also reported that he had been having
difficulty finding a job because he was not able to drive and
had been laid off from his job as a truck driver.
Examination showed active otitis externa and media with
scarring and soreness. Classic parotismal nystagmus was
elicited in Hallpike maneuvers, consistent with peripheral
lesions. Audiometric examination showed average pure tone
thresholds of 44 decibels in the right and 60 decibels in the
left; speech discrimination was 90 percent correct on the
right and 84 percent correct on the left.
Based on this evidence, by April 1986 rating decision, the RO
granted service connection for vertigo and assigned a 10
percent evaluation thereto pursuant to the provisions of
Diagnostic Code 6204. The 10 percent evaluations for
tinnitus and otitis media and the noncompensable evaluation
for otitis externa were confirmed and continued. In
addition, the RO reduced from 40 to 20 percent the evaluation
for bilateral defective hearing. These evaluations continued
in effect to the time when the veteran again filed claims for
increased ratings in November 1992; these claims are the
subject of the current appeal.
In support of his claims for increased ratings, the veteran
submitted a May 1991 decision of a Social Security
Administration (SSA) Administrative Law Judge who found that
as a result of diabetic peripheral neuropathy, which affected
the hands and feet resulting in constant pain and numbness,
the veteran was disabled within the meaning of the SSA from
his job as a logging truck driver. No complaints or findings
of otitis media, vertigo, or Meniere’s disease were noted in
the decision.
The veteran underwent VA audiological examination in February
1993. He reported mild periodic tinnitus. Audiometric
examination showed a right ear puretone threshold of 60
decibels with speech discrimination of 84 percent correct.
The left ear puretone threshold was 71 decibels with speech
discrimination of 86 percent correct.
In a June 1993 letter, J. E. Arnow, M.D., indicated that he
had recently examined the veteran. On examination, the
veteran reported that he had 4 ear surgeries, but still had
persistent, foul-smelling drainage from both ears. Because
of this, he had been unable to wear hearing aids. He stated
that he also had a diagnosis of Meniere’s disease. On
examination, bilateral mastoid bowls were observed with
purulent foul-smelling debris on each side. He had a large
mastoid tip region of the mastoid bowl and some inflammation
anteriorly as well. Dr. Arnow noted that the veteran
experienced an episode of vertigo during examination. The
assessment was bilateral chronic otitis media with chronic
mastoiditis.
VA outpatient treatment records for the period of December
1992 to July 1996 show treatment for various disabilities,
including diabetes mellitus, hypertension and coronary artery
disease, depression, and chronic ear disease. In June 1993,
he was seen in the ear, nose and throat clinic; he reported a
history of Meniere’s disease with vertigo, tinnitus and
otitis. He stated that he had an episode of vertigo once per
day. Later that month, he sought treatment for increased
episodes of vertigo with persistent numbness of the feet; he
stated that he had fallen three to four times in the last few
months. The assessments included diabetes mellitus with
peripheral neuropathy, hypertension and Meniere’s disease.
In August 1993, he reported that his vertigo was worsening,
occurring three to four times daily; the assessments included
diabetes mellitus, hypertension, and Meniere’s syndrome. In
January 1994, he again sought treatment for increasing
episodes of vertigo. He indicated that these episodes
occurred several times per day and lasted approximately 30 to
40 minutes each; the assessments included diabetes mellitus
with peripheral neuropathy and Meniere’s syndrome.
In an October 1994 VA consultation report, the examiner noted
that the veteran had chronic otitis media and unsteadiness,
but not true vertigo. He indicated that “this is probably
more associated with his chronic otitis, recurrent ear
disease, and a diagnosis of Meniere’s disease, but it does
not matter. This patient is completely incapacitated and to
state that it has to be done by Meniere’s disease versus
chronic otitis media would be foolish.” He further indicated
that the veteran would continue to be incapacitated and
stated that his ability to ambulate was quite poor.
In March and April 1995, VA outpatient treatment records show
that he was seen for worsening vertigo and pain in his lower
extremities. A history of diabetes mellitus with peripheral
neuropathy, hypertension, diverticulitis, and Meniere’s
disease was noted. It was also noted that the veteran was
using a wheelchair a lot. The assessments included diabetic
neuropathy, worsening, requiring dependence on wheelchair and
Meniere’s disease. He was seen in May 1995 for complaints of
constant ear drainage, tinnitus, and constant vertigo
aggravated by any water in the ears or closing of the eyes.
He reported frequent falls. The impression was chronic
vertigo with tinnitus, probably not Meniere’s disease. A
December 1995 outpatient treatment record shows that the
veteran complained of “chronic labyrinthitis;” the examiner
indicated that it was his belief that the veteran had a
multifactional etiology for his dizziness, secondary to
peripheral neuropathy, chronic ear disease, non-insulin-
dependent diabetes mellitus, and anti-hypertensive
medications.
On VA examination in September 1996, the veteran reported
that he sustained bilateral tympanic membrane ruptures in
service and had experienced decreased hearing, chronic ear
infections, and tinnitus since that time. He indicated that
he had undergone several ear surgeries and had been followed
extensively in the VA health care system. Throughout the
time since service, he had intermittent attacks of
unsteadiness, but no true vertigo. However, in the last two
years, his balance difficulties had become constant and he
now used a wheelchair frequently. He indicated that he had
been told in the past that he had Meniere’s disease. The
veteran also reported diabetes mellitus and peripheral
neuropathy secondary to this. He stated that he had a
shuffling gait and had to walk extremely carefully. The
examiner indicated that she extensively reviewed the claims
folder, specifically with reference to the presence of
Meniere’s disease. She noted that although the veteran
stated that he had Meniere’s disease, no documentation of
this had been made due to his middle ear status. On
examination, the veteran’s external ears were normal. The
bilateral ear canals were slightly inflamed. His mastoid
cavities had ossicular remnants and retractions bilaterally
and there was some crusting present on both tympanic
membranes. There was no active infection currently, and no
nystagmus or pronator drift. The examiner indicated that the
veteran walked with a cane and had a slow gait, but no
obvious abnormality. The assessments included chronic otitis
media with distorted middle ear which makes it difficult for
the veteran to wear hearing aids. Also diagnosed was
disequilibrium. The examiner noted that she found no clear
documentation of Meniere’s disease; however, she stated that
it was possible that chronic infection of the ears could
cause a mild irritation of the labyrinth and add to the
veteran’s disequilibrium. She stated that it was also
possible that chronic infection had led to some labyrinthine
dysfunction. She also indicated that his peripheral
neuropathy related to diabetes may play a role with his
disequilibrium. However, she stated that she was unable to
determine the exact percentage that chronic inflammation of
the labyrinth plays in the veteran’s disequilibrium and
referred the veteran to neurology for examination.
On VA neurological examination in November 1996, it was noted
that the veteran had been essentially unemployable since
1989, primarily because of difficulties with peripheral
neuropathy caused by diabetes mellitus. The veteran also
reportedly had some short term memory problems over the last
few years and he had had a stroke in September 1996. The
examiner noted that the veteran had problems with
hypertension, type II diabetes mellitus, peripheral
neuropathy and major depression. On examination, the veteran
was very slow in his gait and had slow speech, but no
dysarthria. He had good understanding of commands, except
for his decreased hearing and the sensory disability
therefrom. There was marked sensory and motor neuropathy
with stroking glove distribution sensory deficits on the
hands and feet. Vibration sensation was decreased in the
toes, ankles and fingers. There was essentially no feeling
on the bottom of the feet and the gait was typical of that
with very broad-based unsteadiness and immediate falling on
attempt to tandem walk or close the eyes. The examiner noted
that the veteran’s dizziness was somewhat worse with tipping
back of the head, suggesting a combination of labyrinthine
and peripheral sensation contributing to the marked
disequilibrium. He concluded that the veteran had severe
disequilibrium which was quite disabling; the examiner
indicated that the veteran was likely to be at least
partially wheelchair dependent. Although the veteran was
currently walking with a cane, the examiner indicated that he
was at great risk of falling given his current abilities.
The examiner concluded that the veteran was no longer
employable, not only because of disequilibrium, but also
because of his poor cognitive abilities and memory deficits.
He indicated that the veteran’s disequilibrium was due to a
combination of severe peripheral neuropathy and
labyrinthitis. He stated that “the labyrinthitis as a
contributory factors to disequilibrium cannot be excluded and
I feel therefore that these symptoms should be considered
service connected based on his history of trauma during
service.”
II. Analysis
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1996). Any reasonable doubt
regarding the degree of disability is resolved in favor of
the veteran. 38 C.F.R. § 4.3 (1996).
When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous.
Conjectural analogies will be avoided, as will the use of
analogous ratings for conditions of doubtful diagnosis, or
for those not fully supported by clinical and laboratory
findings. Nor will ratings assigned to organic diseases and
injuries be assigned by analogy to conditions of functional
origin. 38 C.F.R. § 4.20 (1996).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, see 38 C.F.R. § 4.2 (1996), the
regulations do not give past medical reports precedence over
current findings. Francisco v. Brown, 7 Vet.App. 55 (1994).
Generally speaking, in decisions on claims for veterans’
benefits, a veteran is entitled to the “benefit of the doubt”
when there is an approximate balance of positive and negative
evidence. 38 U.S.C.A. § 5107(b) (West 1991 & Supp. 1996);
Gilbert v. Derwinski, 1 Vet.App. 49 (1990). When the
evidence supports the claim or is in relative equipoise, the
veteran prevails. Gilbert, 1 Vet.App. at 56. Further, where
the “fair preponderance of the evidence” is against the
claim, the veteran loses and the benefit of the doubt rule
has no application. Id.
Increased rating for otitis media
The veteran’s otitis media of the left ear has been evaluated
under 38 C.F.R. § 4.87a, Diagnostic Code 6200, which
contemplates a maximum 10 percent evaluation for chronic
otitis media during the suppurative process. Otherwise, the
disorder is to be combined with hearing loss. In this case,
however, otitis media has been separately rated from
bilateral hearing loss (which is currently evaluated as 20
percent disabling). Therefore, the veteran is currently in
receipt of the maximum schedular evaluation for otitis media.
As such, the Board has considered the provisions of 38 C.F.R.
§ 3.321 (1996), which provide that in exceptional cases, when
the evaluations provided by the rating schedule are found to
be inadequate, an extraschedular evaluation commensurate with
the average earnings capacity impairment due exclusively to
the service connected disability may be approved provided the
case presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. The findings in this case, however, do not
present such an exceptional or unusual disability picture as
to render impractical the application of the regular
schedular standards. In this regard, it is observed that
there is no evidence that the veteran has lost time from work
as a result of his otitis media, and the record does not
reflect any periods of hospitalization for this disability.
Under these circumstances, the Board finds that the
provisions of 38 C.F.R. § 3.321 are not for application.
Increased rating for labyrinthitis with tinnitus
Severe labyrinthitis, manifested by tinnitus, dizziness, and
occasional staggering, is to be rated as 30 percent
disabling, and shall be combined with the ratings assigned
for loss of hearing and suppuration. 38 C.F.R. § 4.87a,
Diagnostic Code 6204. The veteran’s disability is currently
evaluated as 30 percent disabling and this is the maximum
evaluation available under Diagnostic Code 6204.
However, a review of the evidence of record also shows
diagnoses of Meniere’s disease. Meniere’s syndrome is rated
under Diagnostic Code 6205. When the condition is severe,
with frequent and typical attacks, vertigo, deafness and
cerebellar gait, a 100 percent evaluation is provided. A 60
percent evaluation is provided for moderate symptoms with
less frequent attacks, including cerebellar gait. When the
condition is mild, with aural vertigo and deafness, a 30
percent evaluation is provided. 38 C.F.R. 4.87(a).
A review of the recent medical evidence of record in this
case presents an extremely complicated disability picture.
This evidence demonstrates that the service-connected inner
ear disability at issue is manifested primarily by symptoms
of severe disequilibrium, constant vertigo, and tinnitus.
The veteran has also reported that he has fallen frequently
and an October 1994 VA consultation report noted that the
veteran’s ability to ambulate was “quite poor.” On VA
neurological examination in November 1996, the examiner
indicated that the veteran was “at great risk of falling” and
would likely be wheelchair dependent. VA examiners have
consistently described his disequilibrium as “severe” and
have indicated that the veteran is “completely incapacitated”
and unemployable due to his disequilibrium.
However, some of this medical evidence also indicates that
the veteran has other nonservice-connected disabilities, such
as diabetes mellitus with peripheral neuropathy which may
contribute to his disequilibrium symptomatology. Because
these conditions are not service-connected, the law provides
that the extent of impairment due to nonservice-connected
diabetes mellitus or peripheral neuropathy may not be
considered in the evaluation of the claim for an increased
rating for the veteran’s service-connected disability.
In that regard, the Board notes that a December 1995 VA
outpatient treatment record notes a “multifactional etiology”
for the veteran’s disequilibrium. Likewise, on most recent
VA examinations in September and November 1996, the examiners
concluded that the veteran’s disequilibrium was due to both
Meniere’s disease and/or labyrinthitis and peripheral
neuropathy. However, the examiners were unable to determine
the exact percentage of the veteran’s disequilibrium what was
attributable to his peripheral neuropathy and that which was
due to chronic inflammation of the labyrinth and/or Meniere’s
disease. On the other hand, an October 1994 VA consultation
report noted that the veteran’s unsteadiness was due to
recurrent ear disease, including Meniere’s disease; the
examiner did not attribute the veteran’s disequilibrium to
any other nonservice-connected disability, including
peripheral neuropathy. Moreover, the examiner stated that as
a result of his disequilibrium, the veteran was “completely
incapacitated.”
The U.S. Court of Veterans Appeals has held that findings of
fact about matters requiring medical knowledge, such as
determining which symptoms are attributable to which
disorders, require the Board to look to medical evidence.
Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). The Board
is prohibited from relying on its own unsubstantiated medical
conclusions. Id. As such, although more recent VA examiners
have indicated that some of the veteran’s disability is due
to nonservice-connected conditions, because they did not
indicate the percentage of disability attributable to the
veteran’s service-connected inner ear disease, the Board is
prohibited from making its own judgment in that regard.
Therefore, in reaching its decision on the appropriate
disability rating for the veteran’s service-connected inner
ear disease, the Board relies on the October 1994 VA
consultation report indicating that the veteran’s
disequilibrium is due to chronic ear disease only and that
such condition renders the veteran “completely
incapacitated.” In light of this evidence, and affording the
veteran the benefit of the doubt in this matter, the Board
concludes that a 100 percent disability rating for
labyrinthitis with tinnitus and/or Meniere’s disease is
appropriate. 38 C.F.R. 4.87(a), Diagnostic Code 6205;
Gilbert, 1 Vet.App. at 56.
ORDER
An evaluation in excess of 10 percent for otitis media is
denied.
An 100 percent evaluation for labyrinthitis with tinnitus
and/or Meniere’s disease is granted, subject to the laws and
regulations governing the payment of monetary benefits.
J.F. GOUGH
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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